IPBiz

Intellectual property news affecting business and everyday life

Saturday, September 30, 2006

Internet postings: here today and gone tomorrow

In the "Avatar" episode of Law and Order (29 Sep 06), an Internet photo of a murdered woman provokes a lot of 911 calls. As the episode progresses, we learn that the hit on the woman/mother was orchestrated through the daughter by a posting on a friends-like internet site.

The issue of the changing nature of internet-posted content came up. After securing her hit man, the daughter removed the murder solicitation from the website, which removal tricked McCoy and friends for a while. Reminds one of some of the removals/alterations of patent data by the USPTO on their website. Also is a signpost along the way for future problems with internet based prior art in patent law.

Following Toshiba's recall of Sony lithium ion batteries on Sept. 29, 2006, Reuters wrote: This is the latest in a series of setbacks that have shaken consumer and investor confidence in Sony's technological competitiveness.

The problem was identified in terms of a short circuit: Sony said short circuits could occur on rare occasions when tiny metal particles come in contact with other parts of the batteries.

Friday, September 29, 2006

Does the Constitution require Congress to foster innovation?

Bob Park notes that the presence of other news this week "allowed the House to quietly pass H.R. 2679, the "Public Expressions of Religion Protection Act of 2006," with scarcely a mention in the media. The bill would prevent plaintiffs from recovering legal costs in any lawsuit based on the "establishment clause" of the First Amendment, which of course only happens when the court finds the plaintiff's Constitutional rights have been denied. The Senate is expected to pass a companion bill, S. 3696. Congress cannot simply abridge the Bill of Rights.

Bob, neither the Constitution generally nor the Bill of Rights specifically addresses the shifting of legal costs in lawsuits. Denying fee shifting is not an abridgment of the Bill of Rights.

Further, although the Constitution gives Congress certain powers of relevance to intellectual property, Congress does not have to create a patent act of any kind, if it does not wish to. There is no Constitutional mandate for innovation. Moreover, if Congress doesn't wish to fund the Supreme Court, Congress doesn't have to. Look back to the era of Marbury v. Madison, and one will find that Congress didn't fund the Supreme Court for a while.

"In most of cases, companies see the plagiarism of commercials as a win-win situation," said Kim Se-won of the Advertising Review Board. "They like their commercials to be copied and replayed by other companies, because it reminds consumers of their products."

The controversy over the folder phone commercial has just followed a similar debate. Earlier this month, Internet users said LG plagiarized a music video clip of "Can't Stop" by the Red Hot Chili Peppers, a famous U.S. rock band, in another mobile phone commercial.

The Research Integrity Committee, which Angie Bukley chairs, is investigating 133 theses, including the 15 from the chemical engineering department. The committee eventually will develop a framework to examine some of the more than 1,800 theses written since 1980.

(...)

The definition of plagiarism isn’t clear, Pasic said, adding that he didn’t believe what his students did was plagiarism.“All of my students did original research work,” Pasic said. His students did not adequately cite the literature review section — negligence by both the student and himself, he said.

The new policy also calls for patent owners to record their ownership under their own name, rather than using a shell company, and for patent applicants to perform thorough searches in advance of filing an application to ensure a lack of infringement.

Sadly, as written, the text in the Austin Business Journal is gobbley-gook. One does NOT perform searches in advance of FILING an application to ensure a lack of INFRINGEMENT. One performs searches to establish patent validity by showing an absence of prior art. [Also, sadly, there was no contact information to communicate with the Austin Business Journal about the article.]

The Business Journal article has a quote: "The centerpiece of this policy... is based on the principles that patent quality is a responsibility of the applicant," John Kelly, IBM senior vice president for technology and intellectual property, said in a written statement. "IBM is holding itself to a higher standard than any law requires because it's urgent that patent quality is improved, to both stimulate innovation and provide greater clarity for the protection and enforcement of intellectual property rights."

One notes that in May 2006, Joesph Hosteny wrote an article in Intellectual Property today entitled "Is IBM a patent troll?" in which Hosteny mentioned IBM's US 6,886,129: Method and system for trawling the world wide web to identify implicitly defined communities of web pages and IBM's US 6,986,366: System and method for management, creation, storage, search, and delivery of rich media optimized for e-commerce in a distributed information network. Hosteny did not mention IBM's patent on queuing up for a toilet on an airplane.

IBM says it's going to make about 100 of its business method patents, about half of the business method patents it owns [IPBiz: ?], available to the public and acknowledge its direct ownership of all the patents it holds and patent applications it's made in cases where, sly puss, it might have used a surrogate or shell company when it filed.

These modest enough reforms are part of a new patent policy that IBM says it is implementing worldwide as a result of a two-month online colloquy that it had with some 50 outside IP experts back in May and June to upgrade patent quality in the name of promoting innovation.

It's unclear how valuable the business methods patents are that IBM is opening up.

(...)

IBM says the wiki that it conducted with the 50 experts resulted in "a collaboratively written document that establishes the foundation for building a functioning marketplace for the creation, ownership, licensing and equitable exchange of intellectual property." It's published the thing at www.ibm.com/gio/ip and hard copies are available by contacting ipeditor@us.ibm.com

IPBiz note: use of the url provided by java transfers one to http://domino.research.ibm.com/comm/www_innovate.nsf/pages/world.gio.ip.html

The report may be here:http://domino.research.ibm.com/comm/www_innovate.nsf/images/gio-ip/$FILE/building_a_new_ip_marketplace-report.pdf

[got tired of waiting for the download.]

***The IBM proposal about shell companies has not drawn much commentary.

HOWEVER, the Wall Street Journal recently reported about Merck:

Thirteen years ago, Merck set up a subsidiary with an address in tax-friendly Bermuda, in partnership with a British bank. Merck quietly transferred patents underlying the blockbuster drugs to the new subsidiary, according to documents and people familiar with the transaction. Merck then paid the subsidiary for use of the patents.

The arrangement in effect allowed some of the profits to disappear into a kind of Bermuda triangle between different tax jurisdictions. The setup helped Merck slash $1.5 billion off its federal tax bills over roughly the next 10 years.

The scheme was named "Project Ryland," for the Ryland Inn in Whitehouse Station, NJ.

Dow Chemical and General Electric may have been involved in similar plans.

Wednesday, September 27, 2006

IBM's move: incredibly powerful stuff? No way!

Jason Wood submits: IBM (IBM) has made an immensely important and forward-thinking step in helping foster innovation by leading the way for patent reform. The New York Times has an article today outlining IBM's plans to revamp its patent disclosure and filing process.

(...)

This is INCREDIBLY powerful stuff, and hopefully will light a fire under the current administration to expedite its long-debated patent reform legislation. Patent filings and litigation resulting from those filings has exploded in recent years. The absurdity of some of the filings is unquestionable. Big Blue has been granted more U.S. patents than any other company for 13 consecutive years (and are probably a good bet to take the crown again in 2006), with just under 3,000 issued last year. One would think they have a vested interest in protecting the status quo, but in fact they're pushing the envelope.

Amazing how gullible some people are in the area of intellectual property. If Mr. Wood thinks this is "pushing the envelope," he needs a new life, maybe collecting stamps.

Bill Heinze wrote:

Woo hoo

and

Aye Caraumba. . .

***The 271blog has a post: Deconstructing IBM's "Public Patent Review" in which one issue raised is the conversion of 102(e) art into 102(b) art by publishing the application earlier than would be the case [it would appear that IBM's doing the industry a big favor by possibly converting a lot of 102(e) art into 102(b) art. A patent filed more than a year before another patent still gives the subsequent patentee some wiggle room to swear behind the first patent. If the patent publishes more than a year before, the second patent's dead. I like this aspect of the program, especially in light of the current level of patent pendency at the USPTO. This could also be helpful in uncovering "secret" prior art (i.e., patents that haven't published yet) when preparing patent applications.]

IPBiz notes: a different aspect seems to be that comments ABOUT the IBM applications are directed to IBM over a six month window period. Does anybody remember the controversy about the IBM patent server (Delphion) wherein IBM was purportedly keeping track of the requests to determine "who" was interested in "what"? Thus, although the requestor got (at the time) free patent information, the requestor effectively provided information about requestor. Is the present IBM comment system a different approach to determine who is interested in what?

If this dog is in this condition, imagine what it's going to do to all of us

On September 26, 2006, AP reported: A trucking company worker accidentally damaged a pressurized tank of sulfur dioxide [SO2] Tuesday, releasing a cloud of the noxious gas and sickening dozens of people in Elizabeth, New Jersey.

The AP report also noted:

Witnesses said people began vomiting after breathing the gas, a poisonous industrial chemical that smells like a match that has just been struck.Deputy Fire Chief Lathey Wirkus arrived at the scene and began to feel his lungs burning.

"I started screaming at all these people to run down the street," Wirkus said. "They were hacking, coughing, snot coming out of their noses."

Wirkus saw a dog nearby on its side with its tongue panting.

"I thought to myself, `If this dog is in this condition, imagine what it's going to do to all of us,'" said Wirkus, who received oxygen at a hospital.

Gee, imagine the fate of all the people and dogs who have been living in Linden, New Jersey for years.

Further to the discussion of patent trolls, Caroline Horton Rockafellow writes

If the definition of a patent troll is one who seeks to enforce a patent but has no intent or ability to manufacture or commercialize products that would infringe such patents, then patent trolls would include research institutions, universities and all companies that focus solely on research and development. Since innovation is generally regarded to be a desirable thing, and in fact the entire premise behind Article I, Section 8 of the U.S. Constitution, which provides that Congress shall have the right “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” it would not make sense to limit the activities of these institutions or their ability to secure and enforce patent rights. In fact, these institutions are generally not considered to be included in the definition of a patent troll. So, if a university with no intent or ability to commercialize a product chooses to enforce such patents, why would they not be included in the definition of a patent troll?

IPBiz notes that "disclosure of invention" is the concern in the Constitution, not innovation. Innovation is NOT the entire premise behind clause I,8,8.

Rockafellow writes further:

The general consensus by those that wish to limit the activities of patent trolls is that trolls are entities and individuals whose sole business model is focused on collecting patents for the purpose of extracting license fees from product manufacturers. The argument is that the companies that invest in the development and manufacture of products are being held hostage by patent trolls with patent rights that cover the products under development. Again, the argument seems reasonable, but does require further analysis.

IPBiz asks: what was the University of Rochester doing in the Celebrex case? what is Ariad (with Harvard and MIT) doing in the Lilly case?

Rockafellow also writes:

So the issue really comes down to whether it is fair to have legitimate business with commercial products put at risk by being forced to deal with patent trolls either by defending lawsuits or by paying large license fees. On the one hand, it certainly does not seem fair that a business that has developed technology and expended the time and effort to commercialize the technology should be held hostage by a company with no products to offer the public. Yet, that is not the right that the Constitution grants. The Constitution gave Congress the right to promote science by securing exclusive rights in inventions. It is not a grant to the company that has the best ability to provide the best product to consumers, even if that is what would provide the greatest value to consumers. Ultimately, we do not want a situation where good products are kept from consumers or where companies that invest heavily in technology development are restricted from benefiting from that effort because of a prior patent right.

IPBiz notes: the whole point in an "incentive to publicly disclose" system is that members of the public, especially competitors, will read what is disclosed and then act accordingly and appropriately. No business should expend time and effort without first having read relevant publicly disclosed information.

Right-to-Life person Barbara Listing states: "The Michigan Citizen for Stem Cell Research and Cures’ web site exposes them as a misleading advocacy organization which is so uninformed of current events they weren't aware the South Korean cloning experiments were fraudulent."

Somatic cell nuclear transfer (SCNT) is a laboratory procedure that creates embryos for use in stem cell research; sometimes referred to as “therapeutic cloning.” In SCNT, nuclear transfer is used for medical treatment or research. For example, nuclear transfer could be used to create a line of embryonic stem cells genetically identical to the donor. These embryonic stem cells could then be used to generate specialized cells that are transplanted into the patient to replace cells lost to injury or disease. When used in a medical treatment, this would ensure that the new cells would not face rejection by the patient's immune system. Nuclear transfer also gives researchers the ability to create stem cell lines that carry genetic defects that cause inherited human diseases, allowing them to study the origin of these diseases and potentially to develop new treatments.[IPBiz notes: Hwang Woo Suk claimed to use SCNT on human cells to create human stem cell lines. This never happened. The only remaining claim for human SCNT (which did not create stem cell lines) is that of Newcastle from 2005, and Newcastle has published no further work on this claim. Various people may wish to debate the "could be used" language of the Michigan website.]

SCNT substitutes the nucleus of a somatic cell (which contains all the genetic information of the patient) for the nucleus of a donated egg that has not been fertilized. In cell culture, this customized egg is then coaxed with an electronic or chemical catalyst to develop into a zygote as if it had been fertilized. The zygote begins cell division and develops into a ball of cells called the morula and then into the blastocyst at approximately five days. The inner cell mass of the blastocyst is then removed to generate a pluripotent stem cell line. After the inner cell mass is removed, the blastocyst is no longer capable of further development. [IPBiz note: of course, no has created a stem cell line via human SCNT, so that this paragraph is hypothetical.]

The SCNT methodology is still in its infancy. Researchers hypothesize that when the genetic information from the cells of a patient is used, the pluripotent stem cells will be able to make customized tissue that will not be rejected by the patient. SCNT researchers contend that the knowledge gained about developmental biology via the SCNT methodology will allow future researchers to create individualized pluripotent stem cell lines without needing fertilized eggs as sources.

Tuesday, September 26, 2006

In regard to the Rosengarten case in Orphans' Court in Bucks County in 2005, attorney J. Brooke Aker, publisher of the Fiduciary Review, a monthly examination of all Orphans' Court cases, said the opinion was too harsh.

"I'm not sure the Superior Court did not go too far," Aker said. "I've tried cases before that judge and he has always been fair."

Aker said the judge properly interpreted the law in the Rosengarten case. He said he planned to take a closer look at the matter and was considering writing about it for the Fiduciary Review.

"Personally, I'm not critical of Judge Lawler," he said. "I think the Superior Court took a roundhouse swing at him, for some reason."

The website http://magazines.izvilina.com/fiduciary-review_54677c0.html lists Smith Aker Grossman Hollinger as the publisher of Fiduciary Review, as doesamazon.comIPBiz does not know if Mr. Aker wrote about the case in Fiduciary Review.

Further to the new patent rules in India, Novartis is challenging a denial of patent rights to the drug Gleevec in a southern Indian court. Earlier in 2006, Novartis submitted multiple writs to the Chennai High Court after Indian patent authorities rejected its application for a patent on the anti-leukemia drug Gleevec.

BusinessWeek (through AP) reports: India's new patent law [ordinance], which came into force Jan. 1, 2005, allows patents for products that represent new inventions after 1995 -- the year India joined the World Trade Organization, which regulates patent rules for member countries. Indian drug companies and aid groups say Gleevec is a new form of an old drug -- imatinib mesylate -- that was invented before 1995.

IBM to put patent filings on-line, but does this really matter?

In an article entitled Hoping to Be a Model, I.B.M. Will Put Its Patent Filings Online, Steve Lohr of the New York Times begins:

I.B.M., the nation’s largest patent holder, will publish its patent filings on the Web for public review as part of a new policy that the company hopes will be a model for others.

If widely adopted, the policy could help to curb the rising wave of patent disputes and patent litigation.

The policy, being announced today, includes standards like clearly identifying the corporate ownership of patents, to avoid filings that cloak authorship under the name of an individual or dummy company. It also asserts that so-called business methods alone — broad descriptions of ideas, without technical specifics — should not be patentable. [IPBiz notes that Lohr neglects to mention IBM's airplane restroom queue patent, perhaps one of the most egregious business method patents of all time.]

Lohr emphasizes the risk to IBM of giving information to competitors at such an early time: “Competitors will know years ahead in some cases what fields we’re working on,” said John Kelly, senior vice president for technology and intellectual property at I.B.M. “We’ve decided we’ll take that risk and seek our competitive advantage elsewhere.” HOWEVER, Lohr neglects to point out that universities typically submit papers to rapid publication journals immediately upon patent application filing, thereby undertaking similar risks. FURTHER, if one goes back to Bell Lab's invention of the transistor, one notes that submissions to journals were made immediately after patent application filing, so that the journal articles describing the transistor (and showing Bell Labs' interest) appeared LONG BEFORE the patents issued.

Lohr suggests that IBM's action is related to the so-called patent quality issue. The more open approach, I.B.M. says, is intended as a step toward improving the quality of patents issued in general because the process of public review should weed out me-too claims that are not genuine innovations. Lohr does not explain what the public is going to do with the information in order to "weed out" bad claims.Later in the article was done find a quote from Josh Lerner, co-author of Innovation and its Discontents: “This is a creative response to that fundamental issue in the patent system,” said Josh Lerner, a professor at the Harvard Business School. The patent quality issue also comes up in the text: The old system of a lone patent examiner weighing the innovative merit of a claim to originality, they say, cannot hope to cope with the surge in patent filings. A result, they note, is that many patents are granted for supposed inventions that are of dubious merit.The avalanche of patents — many making broad and vague claims — has produced an environment of uncertainty, rich in opportunity for litigation and patent speculators. Lohr does not use the words "patent troll."

The article includes a quote from IBM CEO Palmisano: “The larger picture here is that intellectual property is the crucial capital in a global knowledge economy,” said Samuel J. Palmisano, I.B.M.’s chief executive. “If you need a dozen lawyers involved every time you want to do something, it’s going to be a huge barrier. We need to make sure that intellectual property is not used as a barrier to growth in the future.” Looking at this a bit differently, IBM's "early publication" practice could be viewed as a gambit to ensure that IBM's competitors will "need a dozen lawyers involved every time they want to do something." Because IBM is not placing its patent applications on-line UNTIL after they are filed, IBM is not risking any of its claims to priority.

Of the Hatch / Leahy bill (S 3818), Lohr writes: Yet any legislation is not likely to be enacted for another year or two.

Monday, September 25, 2006

A Lenovo Group spokesman on Sept. 25 pledged that public safety will be the company's first priority as it weighs what steps to take after a Lenovo ThinkPad T43 laptop with a Sony battery cell caught fire on Sept. 16 at Los Angeles International Airport.

Ray Gorman confirmed the ThinkPad T43 used the same Sony battery cells that were at the center of a recall of nearly 6 million Dell and Apple laptops earlier this year. However, he stressed that Lenovo has a different battery pack design than Apple and Dell.

The report of the burning ThinkPad in the Los Angeles airport comes as airlines Virgin Atlantic, Korean Air and Qantas placed restrictions on passengers that have Apple or Dell notebooks. Virgin requires passengers to remove the battery packs from those laptops.

IPBiz notes the CRN report did not have any possible causes of the lithium battery malfunction. In fact, the CRN report did not use the word "lithium."

****

Bloomberg later noted:

On Sept. 28, Lenovo and IBM recalled the batteries used in its Thinkpad notebook computers after one of them caught fire in a Los Angeles airport terminal as the user was boarding an airplane. There were no reported injuries. When Apple Computer Inc. withdrew 1.8 million batteries in August, Sony released a statement saying it did not anticipate further recalls.

``We cannot disclose the names of client PC makers to whom we supply our batteries - that's for those companies to do,'' said Sony spokesman Takashi Uehara. ``We will start discussions with those companies as soon as possible.''

Of other companies using Sony-made lithium ion batteries:

Fujitsu Ltd., Japan's third-largest personal computer maker, said it will announce Sept. 29 which of its computers contain Sony batteries.

Hewlett-Packard Co. acknowledged using Sony-made cells in its battery packs, but said it does not know how many of its notebooks could be affected. ``Sony told us that the cells in the batteries provided from the vendor have no problem,'' Spokesman Satoshi Nakajima said,

Maryland officials and Hispanic activists are seething over a series of legal maneuvers whereby the family of Samuel Sheinbein, now 19, has prevented his prosecution in the U.S. for the 1997 murder of Alfredo Tello Jr. only child of Central American immigrant mother Eliette Ramos of Silver Spring, a Maryland suburb of the U.S. national capital. Tello’s dismembered and partially burned body was found in an empty garage adjacent to the Sheinbein home in prosperous Montgomery County. American-born Sheinbein fled to Israel with the assistance of his Palestine-born father, patent attorney Sol Sheinbein, and a brother, and then claimed Israeli citizenship. After Israel refused to extradite its new citizen for trial in the U.S., Montgomery County state’s attorney Douglas Gansler, who is Jewish, thought he had an arrangement for Israeli authorities to try Sheinbein on first-degree murder charges in Israel, and bear all the expenses of bringing witnesses to testify.

Instead, Israeli authorities reached a plea-bargain agreement whereby Sheinbein is expected to plead guilty to first-degree murder in return for a 24-year prison sentence. Under Israeli law he will be eligible for weekend furloughs after just four years and for parole in 14 years. If he had been convicted on the same charge in Maryland, he might have faced a sentence of life in prison without parole.

Other patent attorney/murder links include the "Dean Olds Story" and the recent murder by a patent attorney in Fairfield County, Connecticut.

Doerflinger related that a National Institutes of Health expert attempted to reconcile the discrepancy between stem-cell researchers’ political message and scientific fact by stating, “To start with, people need a fairy tale.”

“In fact, we do not need a fairy tale,” Doerflinger contested. “We need the truth. But a fairy tale is what we are sometimes getting – not only from politicians and entrepreneurs but from respected scientific journals. This must change, or science itself will lose credibility.”

Another recent casualty of scientific dishonesty was The New England Journal of Medicine, which admitted in its July 27, 2006 issue that it had misrepresented two studies to claim that stem-cells from cloned human embryos were used with success in animals. After alerted to its mistake by a reader, the journal conveniently admitted its mistake only after Congress had finished voting on stem-cell legislation. [IPBiz has no information on this assertion.]

And of course it was less than a year ago that the Stanford Law Review proclaimed that Gary Boone was the inventor of the integrated circuit.

The Inquirer notes that a patent case of inventor Hakan Lans against Gateway and Dell is now at the CAFC. IBM, HP and Apple apparently took a license.

The Inquirer stated: Gateway argues that Lans was not the patent owner, but the one-man company Lans owned was. Quite why this made a difference is not clear. But in 2001 the District Court for the District of Columbia ruled that Lans had intentionally deceived his lawyers regarding the ownership of the patent. He was ordered to pay Dell and Gateway's court expenses.

Lans thinks that his lawyers ruined the case for him by not making changes to his lawsuit when he asked them to. He says the matter of whether or not Dell and Gateway have been using his technology or not has never been discussed.

According to Lans, the responsibility for any mistake lies with his previous lawyers. An archived fax message suggests that he sent instructions to his lawyers concerning ownership of the patent, authorising them to make any required changes before they filed the lawsuit. This was not done.

“I can’t understand why Dell and Gateway are acting like this,” Lans said, "because I certainly do not have the kind of money that they’re expecting to collect.”

Dell disputes this description, saying that other PC vendors had settled with Lans before discovering that he had never held proper ownership of the patent, according to Dell spokeswoman Jess Blackburn.

The judge will not reconsider the facts of that case, but merely determine the share of attorneys' fees Dell may collect from Lans in punishment for his egregious actions, Blackburn said. Asked to predict the outcome, she declined to comment on matters involving pending litigation.

Sunday, September 24, 2006

Patent takings, Zoltek, and BULR

Adam Mosoff has an article coming up in the Boston University Law Review [BULR] that attacks the conventional wisdom that early courts never secured patents as constitutional private property under the Takings Clause.

28 USC 1498 was passed around the time of World War I, a time when the government was "taking" lots of patents, including the key patent of Wilbur and Orville Wright. [1498 was actually motivated by ships, not planes.] Thus, PRIOR TO World War I, a constitutional takings approach may have been necessary.

Maybe in the future, the Boston University Law Review can attack some of its own conventional wisdom:

The idea that there is an elevated grant rate has been challenged, first by Robert Clarke. The article by Lemley and Moore in the Boston University Law Review misrepresented the work of Robert Clarke on patent grant rate. Contrary to what Lemley and Moore said, Clarke did not assume that every continuation application resulted in a patent. With this assertion of Lemley and Moore invalidated, there is nothing within the Lemley and Moore article to distinguish between the models of Clarke and those of Quillen/Webster and no justification for saying that the patent grant numbers of Quillen/Webster are the best we have. In fact, they are not.

Saturday, September 23, 2006

NYTimes does Marshall (Texas)

The Times noted: More patent lawsuits will be filed here this year than in federal district courts in San Francisco, Chicago, New York and Washington. Only the Central District of California, in Los Angeles, will handle more patent infringement cases.

The Times trots out the statistics: What’s behind the rush to file patent lawsuits here? A combination of quick trials and plaintiff-friendly juries, many lawyers say. Patent cases are heard faster in Marshall than in many other courts. And while only a small number of cases make it to trial — roughly 5 percent — patent holders win 78 percent of the time, compared with an average of 59 percent nationwide, according to LegalMetric, a company that tracks patent litigation.

The impact on the local economy is evident: “During the TiVo-EchoStar trial, 90 percent of my revenue for one month came from one of the law firms in the case,” said Phillip W. Gurganus, manager of the local 68-room Hampton Inn, where rates run $77 a night.

IPBiz wonders: when is someone going to get around to getting the Finisar injunction decision on LEXIS? IPBiz is betting that the analysis won't hold up on appeal.

One indication of Icahn's influence could come in the legal battle over a key patent behind ImClone's sole marketed product, cancer fighter Erbitux. ImClone received a setback earlier this week when a federal judge ruled that Sanofi-Aventis SA, which had granted ImClone exclusive access to the intellectual property described in the patent, was no longer the patent holder. The new patent holder, an Israeli research institute (Yeda), has already begun licensing the patent to others, including ImClone competitor Amgen Inc. of Thousand Oaks, Calif. If ImClone changes its stance and drops its appeal of the patent case, it would be a concession to one of Icahn's public demands. ImClone spokesman David Pitts said the appeal has not been filed yet but will be as soon as possible.

"The court is of the tentative view that the allegations of ethical misconduct are extremely serious and that the conduct of defendant's counsel may have prejudiced the ability of MIT to fully litigate its complaint," wrote Judge Richard G. Stearns in his July 24, 2006 memo. (...)At the oral arguments, Fish & Richardson lawyers representing MIT and Repligen alleged that a Kenyon attorney intimidated a star witness in a deposition. The lawyer asked scientist Stephen Gillies, who was one of the inventors of the cell line, questions about his authority to conduct testing for Waltham, Mass.-based Repligen and his employer's knowledge of his involvement in the case during a deposition.

In the world of chemistry, one of the most brilliant accomplishments was the synthesis of inert gas compounds by Neil Bartlett. In first year chemistry classes, this work sometimes comes up in a discussion of ionization potentials. Bartlett recognized the similarity in first ionization potential of O2 (oxygen) and Xe (xenon). Bartlett made the compound O2+PtF6-, and, by analogy, reacted Xe with PtF6. Some chemistry professors leave students with the idea that Bartlett's product compound was Xe+PtF6-.

Here is an excerpt from Berkeley College of Chemistry's "News and Publications" for summer 2006:

In 1962, Bartlett and other scientists were reluctant to spend too much time unraveling the intricacies of XePtF6 when there was a whole new world of noble-gas chemistry to explore. Bartlett continued his research on noble gas and fluorine chemistry while a UC Berkeley chemistry professor. The difficulties of working with PtF6 meant that the most definitive paper on the nature of XePtF6, published in 2000 by Bartlett and his colleagues, came 38 years after his initial discovery and one year after Bartlett had retired from active research at the College of Chemistry.

The product of the reaction of Xe and PtF6 is primarily not Xe+PtF6-. Some early work in the area came from the so-called Argonne Group, including Henry Selig, who would later work at the Hebrew University in Jerusalem. Selig would later study the fluorination of buckminsterfullerene, with unfortunate consequences.

According to the SF Chronicle, the departure of Hewlett-Packard's Patricia Dunn and the other moves announced by the company on September 22 come as concerns mount that Mark Hurd and HP have not been entirely truthful in their earlier claims that top officials were made aware of the use of false identities in the HP probe only recently. Hurd said he knew of plans to send false information to journalists ["pretexting"] in an effort to find out which HP board members were leaking sensitive information to the press. But Hurd said he wasn't sure he remembered everything about how the plan was to be carried out.

Hurd said Hewlett-Packard would appoint Bart M. Schwartz, a former federal prosecutor, as counsel, to perform an independent review of HP's investigative methods and the company's Standards of Business Conduct processes. Schwartz will report to Hurd and to Bob Wayman, HP's chief financial officer. At the news conference on Sept. 22, Hurd was accompanied by lawyers from Morgan Lewis & Bockius, hired by HP to investigate the scandal.

As noted in IPBiz, the February 10, 06 issue of Science announced that Stanford's John I. Brauman will head an external panel investigating how the [fraudulent] papers of Hwang Woo Suk on embryonic stem cells were handled by Science. Science did not actually say the results would be made public, and so far they have not been made public.

Separately, my paper on Science's inaccurate reporting on patent continuations will be coming out soon.

Friday, September 22, 2006

In terms of number and quality of patents over the years 2000-2004, the Milken Institute study (Ross DeVol lead author) ranked the University of Texas first and three University of California campuses ahead of Wisconsin, the holder of the Thomson stem cell patents now bothering California's CIRM.

The study also considered publication of papers. UW-Madison ranked 14th in publication of biotechnology research, as measured by papers and citations. Harvard University ranked first followed by University of Tokyo and University of London, while California universities hold five of the top 25 rankings.

According to the Philadelphia Inquirer, the 300-page report was paid for by Inflect Technologies, a New York firm that invests in university intellectual property and commercialization of academic inventions. Milken declined to specify the cost of the study, which compared U.S. universities and their counterparts in Europe, Canada, Latin America, Australia, Japan, China and other countries.

Of relevance to the Bayh-Dole Act, the study found that European universities establish about three times as many new companies relative to research expenditures as those in the United States and Canada.

Massachusetts Institute of Technology ranked No. 1 in turning research discoveries into commercial products and companies, through licensing agreements and start-up firms. The University of California system was second. One notes that MIT was involved in the Ariad and Abacus litigations, and UC/Berkeley was involved in the Eolas case.

What ever happened to the Ethics Committee for the American Chemical Society?

As a follow-up inquiry, does anyone know what happened to the proposal for the ACS to have an Ethics Committee? I was on the Task Force, and the last I heard from the Task Force was that the proposal was moved along at the New Orleans meeting. However, a post on the internet seems to indicate that the proposal was sent back. George Wyman sent a letter to C&E News about this (don’t know if it was published).

Separately, has anyone heard about the results of the Brauman Committee that was supposed to look into the handling of the Hwang publications by Science?

The paulbracher blog had posted from IPBiz:

IPBiz note: Having served on the Ethics Task Force of the American Chemical Society, I can say that “education” was the main thrust of the Society’s efforts. Unlike the APS, the ACS took no steps on co-author responsibility. Furthermore, the ACS took no steps on enhancing editor responsibility or facilitating the publishing of corrections/commmentary.

***As a followup:

Report to Council - March 29, 2006Ethics Committee

Margaret Cavanaugh, Chair

The first meeting of the Ethics Committee was held at this national meeting. The Committee was established by Council and the Board in fall 2005.

Committee members were briefed on events leading to the establishment of the Ethics Committee and then carefully reviewed their charge. The Committee decided to pursue two areas in the near term:

Ethics Education, which may result in an inventory of resources, development of a website, and curriculum materials; and

Ethics Awareness, which may lead to articles in ACS publications and newsletters, and symposia or other programming at local, regional, and national meetings.

The Committee established a task group in each of these areas to develop specific plans for review at the Committee’s next meeting. Initial programming at national meetings is anticipated in 2007.

The Ethics Committee agreed on two values to guide its activities: (1) encouraging dialogue, and (2) partnering with other ACS entities. Consistent with these values, the Committee has begun and will continue to pursue establishing liaison relationships with appropriate committees and divisions. We also invite your input regarding what ethics issues are most important to ACS members.

Thursday, September 21, 2006

IPL&B highlights role of James Dabney in KSR v. Teleflex

The case KSR v. Teleflex now before the Supreme Court is about the motivation requirement used by the Federal Circuit in deciding obviousness cases. Its purpose is to protect against hindsight reconstruction, and if functions to make patent invalidity through obviousness HARDER to demonstrate (thus, it is pro-patentee). However, the theory of patent law is not the only thing at issue in KSR v. Teleflex. The theory of patent litigation is also at issue.

IP Law & Business wrote: James Dabney and some others argue that a Supreme Court specialist isn't quite the answer. "The trade-off is how well people know the Court versus how well they know the subject matter," says Stanford Law School professor Mark Lemley, one of 24 law professors who filed an amicus curiae brief on behalf of KSR. "In several high-profile cases over the last four years, very well-known oral advocates have blown the answers to really important questions," he added, though he declined to provide specifics.

In the Festo case, a certain Supreme Court specialist was "out to sea" when asked about a patent-law specific question. However, his opponent, a patent law specialist, referred to Justice Stevens, as Justice Stevenson. Mr. Dabney will make neither type of mistake. IPL&B quotes Dabney: "It's hard for me to imagine there is someone who could be more effective than me."

IPL&B notes that Dabney will be facing a "Supreme Court specialist": Dabney will face off against Supreme Court specialist Thomas Goldstein, a partner in Akin Gump Strauss Hauer & Feld. It's Goldstein's 17th high court argument, but his first patent trial. So he's turning to two patent lawyers -- Robert Sterne and Kenneth Bass, of Sterne, Kessler, Goldstein, Fox -- for IP questions. Steven Susser, a partner at Southfield, Michigan litigation boutique Young & Susser, had represented Teleflex at trial and on appeal. "While we consider ourselves to be trial specialists, we believe this has become an issue that is best handled by a Supreme Court specialist," he says.

Pennie & Edmonds gets a mention in the IPL&B article: Dabney took on the KSR case a year later, while he was still a partner at now-defunct Pennie & Edmonds. Robert Kalec, a general litigator with Troy, Michigan's Dean & Fulkerson, had handled the litigation when it began in 2001, but KSR approached Pennie in 2003 to review the case, and decided to hire the firm.

Wednesday, September 20, 2006

In February 2006, IPBiz noted a dumb comparison of NTP to Dr. Strangelove. Now we have another inappropriate discussion of Dr. Strangelove, based apparently only on knowledge of the title: Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb, as distinct from knowledge of the movie. This shorthand approach evokes the "dictionary approach to knowledge" of the Federal Circuit in Phillips, as recently demonstrated in the MIT scanner case.

Unlike the novel Red Alert by Peter George (upon which Strangelove is loosely based), the movie is a satire on the cold war. Further, unlike the one suggestion in the IP article that we stop worrying about the patent system and learn to live with it, in the movie Major "King" Kong (Slim Pickens) gets through the Soviet air defenses and drops a bomb. Kong's success activates the Soviet doomsday machine. As the doomsday machine is activated, Dr. Strangelove bolts out of his wheelchair shouting "Mein Führer, I can walk!", seconds before the movie ends with a barrage of nuclear explosions, set to the song "We'll Meet Again". The final message in Dr. Strangelove is not about stopping worrying and learning to live with the bomb. It is quite the opposite. The microcosm of the IP paper's misuse of Strangelove should serve as a message of the dangers of dictionary use which survive the Phillips case.

Aside from the bad discussion of Dr. Strangelove, the IP article cites only to Quillen and Webster's first paper, and resurrects the 97% patent grant rate delusion. Law school professors don't shepardize their sources. Law school professors are not "current" when they cite older papers, which have been both modified and criticized. Propagating bad information is worse than plagiarizing truthful information. May be the folks at Ohio University can take note.

***On plagiarism, taken from the Jackson Citizen Patriot***

Judge David Reader ordered Dickens (who skipped jury duty) to observe court proceedings for three days for skipping jury duty back in June. The judge also ordered Dickens to write a five-page paper on the history of jury service. Judge Reader wasn't amused when he discovered 20-year-old Dickens had plagiarized the paper.

"Really, what I was looking for, Mr. Dickens, was your own work," Reader told the young man in ordering him to rewrite the paper and spend a fourth day observing court.

***The University of Kansas has subscribed to the turnitin.com program for years. But in a recent e-mail, university officials said the subscription would not be renewed after it expired October third because of copyright concerns and the $22,000 cost.

from http://www.wibw.com/home/headlines/3966691.html

[IPBiz post 2001. The movie "2001" came out in 1968, 4 years after "Dr. Strangelove."]

Tuesday, September 19, 2006

Ethical issues with stem cells in Massachusetts

313 Science 1372 (8 Sept 06)has an article quoting Dr. Eggan, the recent MacArthur Fellow award winner, in the context of the current debate in Massachusetts.

Scientists object to Massachusetts Rules

"The prohibition on the creation of embryos [by fertilization] solely for use in research is implicit in the language" of the law contends the Public Health Council "[W]here the primary purpose is research, only the asexual creation of an embryo is permitted."

Eggan: the regulation would prevent Mass scientists from using cell lines derived in other states if they came from embryos created for research purposes.

BUT, Evan Snyder: "Most scientists gree that you don't want to make embryos specifically for research," he says, because it appears to be "ethically dicey."

IPBiz: the debate about the word "solely" reminds one of the debate about the word solely in 35 USC 271(e)(1), which the Supreme Court did not address in Merck v. Integra.

IPBiz: the work by ACT published in Nature, which suffered from a shortage of available embryos, was conducted at ACT's facility in Worcester, MASS, not in its facility in Alameda, CA.

***Also of interest -->

313 Science 1374

Senator Tom Coburn (R-Ok) wants to know which universities have hired lobbyists to help obtain earmarks and the impact of the found money on their campuses and on science.

Science noted: "Some universities see earmarks as a way to simultaneoulsy move up the academic food chain and strnegthen the local economy."

313 Science 1385

Prof. Robert Holton loses in court battle on how Florida State University can spend patent royalties on Taxol.

Kicking somebody while YOU are down

I will be making commentary upon, and presenting a picture of, the unsportsmanlike conduct action (a kick to the groin of a Giant player) that occurred in the closing minutes of the fourth quarter of the Eagles - Giants game on Sunday, September 17, 2006.

Much has been said of how it changed the outcome of the game. It did.

However, one begins to wonder how different current football is from Rollerball (James Caan). The image was not helped by the "60 Minutes" story, also on Sept. 17, concerning Romo. BUT, recall that CBS had, 46 years earlier, run an October 31, 1960 special, "The Violent World of Sam Huff." Huff, like Johnny Unitas, Joe Namath, and Joe Montana, was from the Pittsburgh area (Huff from Edna Gap, near Pittsburgh.)

Sid Dorfman ran a piece in the Star-Ledger on Sept. 20 about Unitas noting "The players were smaller than today's herd but far less restricted by officials and far more violent, not that today's NFL assassins play a polite game."

Monday, September 18, 2006

The chemical reaction that occurs in lithium-ion batteries is complicated. But the basic reaction involves coupling a lithium-carbon compound (which serves as the negative electrode [anode]) with cobalt oxide (which serves as the positive electrode[cathode]), according to K.M. Abraham, a lithium battery consultant and visiting chemistry research professor at Northeastern University in Boston.

Of the danger:

Abraham said the biggest threat is the possible penetration of the thin barrier made of synthetic material - about as thick as a sheet of paper - that separates the two electrodes and prevents the quick release of energy.

The nature of the "lithium-carbon compound" is a bit complicated. I wrote a paper on it: “The Interrelationship of hydrogen-containing carbon and lithium,” Carbon, 34, 671-672 (1996). The idea that carbon-lithium would be of interest as an anode material was discussed in: “Intercalation Compounds of Graphite, Annual Rev. Mater. Sci., 6, 181 (1976).

Of the danger of Google searches, whether done by Dateline on the ingredients of Moisturol (aka NesQuik) or anybody else, note the following text found via a Google search:

From http://www.military-information-technology.com/print_article.cfm?DocID=990 :

Safety is another important issue in battery development. Most lithium-ion rechargeable batteries use carbon as the cathode and alternate layers of cobalt oxide and lithium as the anode. The exchange of lithium ions between the cathode and anode recharges the battery.

But cobalt oxide is sensitive to heat spikes under high processing demands. Heat spikes or a short inside a cobalt or metal-oxide battery can trigger thermal runaway, which, when caught on fire, feeds itself with its own oxygen.

Further to an earlier IPBiz post, U.S. District Judge Naomi Reice Buchwald made a finding in a 140-page opinion that said lawyers for the Israeli scientists had proved the scientists were entitled to sole inventorship of the Erbitux patent. Three Israelis are the inventors of Erbitux.

The New York Times noted: Weizmann Institute of Science in Israel and its licensing arm, the Yeda Research and Development Company, said researchers with the institute developed the technology that a Sanofi-Aventis predecessor, Aventis, patented and licensed to ImClone. The district court ruling could entitle the Israelis to royalties on Erbitux, which is ImClone’s only marketed product. United States sales of the cancer treatment were $172.8 million in the second quarter. The patented technology is for a combination of an antibody with chemotherapy to inhibit tumor growth. Erbitux belongs to a group of cancer drugs called epidermal growth factor receptor inhibitors.

[Yes, this is the company (ImClone)/drug (Erbitux) related to the Martha Stewart problem. ImClone founder, Sam Waksal, is serving a prison sentence for his role in the stock scandal that also ensnared Martha Stewart. Yes, BMS was involved. A lawyer for Aventis later noted that one trial witness had remarked that hundreds of millions of dollars were at stake for Yeda and Erbitux, which is distributed in the U.S. by Bristol-Myers Squibb Co. Yes, this is another case wherein an academic entity (here Weismann) has prevailed over commercial entities in the patent arena. Recall Ariad v. Lilly.]

The result of the case makes one wonder about due diligence at Aventis and BMS. How could one miss a significant inventorship issue?

NBC News highlights report on "women and science"

The NBC Nightly News (Brian Williams) on 18 Sept shifted stories to one captioned Women and Science with a report from Donna Shalala, now Prez of Univ. of Miami. There was an allusion to problems in the women/science interface involving a former Harvard president (Summers) although no name was given on television. Both Summers and Shalela were in the Clinton cabinet. [Summers contended back in January 2006 that boys outperform girls in science and math because of genetic differences.]

The report is titled Broad National Effort Urgently NeededTo Maximize Potential of Women Scientists and Engineers in Academia and begins with the text:

Women face barriers to hiring and promotion in research universities in many fields of science and engineering -- a situation that deprives the United States of an important source of talent as the country faces increasingly stiff global competition in higher education, science and technology, and the marketplace, says a new report from the National Academies [NAS]. Eliminating gender bias in universities requires immediate, overarching reform and decisive action by university administrators, professional societies, government agencies, and Congress.

Several others were on the committee, including Robert J. Birgeneau.

The "working mothers" report, which was pre-empted to allow presentation of Women and Science, is to appear on 19 Sept.

**Back in January, IPBiz had noted of Summers/Harvard: And of course the Harvard Law Review says the PTO grants 97% of patent applications, and there was Laurence Tribe's plagiarism. Is it the water?

Further to the earlier patent auction by Ocean Tomo, Ocean Tomo Auctions, LLC has announced on September 18, 2006 that Robelight, LLC has consigned U.S. Patent Numbers 6,861,640, 6,977,366, 7,020,383 and a pending PCT application, entitled "Thwarting of Movie Piracy Patent Portfolio Lot", to be sold at The Ocean Tomo Fall 2006 Live Intellectual Property Auction to be held on October 26, 2006 in New York City.

NYTimes on Rutgers football and Rutgers finances

Therein, the Times noted that Rutgers Prez Richard McCormick , prior to attending a football rally, had an "earlier public appearance that day. In a sobering speech to faculty and students, he outlined the university’s battered financial picture and the “gravest budget cuts” in the school’s history."

The Times also noted:

But for Rutgers officials there is no way to ignore those problems. After the state cut $66 million out of its $1.6 billion budget, Rutgers cancelled hundreds of classes and fired hundreds of workers. Facilities throughout the campus have been closed and tuition has been raised.

“There’s no denying the severity of the cuts or the painfulness of the decisions we have to make,” said Mr. McCormick.

The Times did allude to the issue Vai Sikahema raised:

Some have criticized the attention and resources given to football, particularly after Mr. McCormick announced that six athletic teams — including men’s tennis and crew — would be cut next year.

“I understand that the football team did very well last year, and I don’t advocate rolling it back, but holding its budget constant doesn’t seem to be outrageous when we’re laying off hundreds of people and cutting hundreds of classes,” said Dave Cole, the president of the undergraduate student body at Rutgers College.

Mr. McCormick, however, remains dedicated to the football team. That program, like all of his plans, he said, need his support when people least want to give it.

The Times did not mention what Sikahema pointed to: that Rutgers football lost $8 million last year.

I don't know why people are blasting Rutgers football. Yes, they lost $8M.....[IPBiz note: Vai Sikahema was criticizing the NEW expenditures (and cancellations) in LIGHT of the $8 million loss last year.]

But I'm literally SHOCKED, that "government employees" (ie, Rutgers employees) would suddenly require something to be a "profit center". I thought all gov. agencies were "loss leaders", almost by definition NOT profit centers. (But of course, any gov. employee is sure HIS job is just essential to society, even if it is not a profit center.) I'll bet every dept on campus is a "loss leader"...and they want to pick on football? [IPBiz note: Bayh-Dole has changed the "loss leader" picture, if such ever existed.]

Now, I'm all for picking on football, Div I competition, etc. Football coaches should make no more than tenured faculty members, or the woman's tennis team coach. [IPBiz note: according to Sikahema, Schiano is the highest paid state employee in New Jersey.] But for everyone to "pile on" against football, when they are in exactly the same boat, is just plain hypocritical.

Michael Fumento argued that Nature and Science may have bias in their discussion of stem cell research:

But as I've written elsewhere, Nature has long boosted embryonic stem cell (ESC) technology generally and the lifting of federal funding restrictions specifically, as has its American counterpart Science. Their eagerness to run anything promoting this view recently led to Science being forced to withdraw not one but two "ESC miracle breakthrough" articles. [IPBiz: that is, the two papers by Hwang Woo Suk and co-workers.]

I suggest that Science, in running the paper by Eli Kintisch on continuations as "news of the week," may have portrayed an op-ed position as "news." There was no "news" in the article, but there was a false representation of continuation applications. See my upcoming article

Sunday, September 17, 2006

In MIT v. Abacus, the CAFC ruled that the claim limitation "colorant selection mechanism" was subject to 35 USC 112 P6, stating that "generic terms 'mechanism,' 'means,' 'element,' and 'device,' typically do not connote sufficiently definite structure." In so doing, the CAFC affirmed the district court. Other aspects were not affirmed.

William Rooklidge appeared on behalf of appellant MIT, and did effect a vacation of the district court construction of the term "aesthetic correction circuitry."

The patent at issue was US 4,500,919 directed to a color processing system for producing copies of color originals.

The CAFC cited Cybor, 138 F.3d 1448. The CAFC criticized the mechanism by which the MIT case had been litigated. The CAFC did get into dictionaries and cited Phillips, 415 F.3d at 1322. There was a discussion of "flying spot scanners."

MIT argued that television cameras are scanners that operate without relative movement. The CAFC rejected the argument. [In a world in which MIT says a TV camera is a scanner and Ariad/MIT/Harvard assert a natural process patent against Eli Lilly, it is somewhat difficult to determine what a good or a bad patent is. See previous post on IPBiz about patent reform.]

The CAFC cited Schering v. Amgen, 222 F.3d 1347 for the proposition that a claim does NOT include later-discovered species that were unknown at the time of the application. The court also cited Kopykake, 264 F.3d 1377.

The Daily News pointed to discrepancies between text in ex-Governor McGreevey's book "The Confession" and Golan Cipel's version. A prime issue is whether there was consensual sex between McGreevey and Cipel. However, both McGreevey and Cipel seem to agree that McGreevey had some delusions of grandeur about being governor. It is a shame that New Jersey newspapers missed this aspect at the time.

from the Daily News:

The former governor, who resigned in 2004 after admitting to having been a closeted "gay American," said in his book, due out Tuesday, that he felt "invincible" at the time.

Cipel said, "Once I asked him, 'Who do you report to?'

"And he said, 'Only God is above me,'" Cipel recalled.

In fact, Cipel said he didn't know whether it was appropriate for him to be appointed homeland security adviser since he wasn't a citizen, and that he wanted to tell the media that he never claimed to have homeland security expertise, and that his rank of lieutenant in the Israeli Army was common, but McGreevey forbade it: "He said, 'I'm the most powerful governor in the nation. I can appoint whomever I want.'"

Cipel took the job, he said, because "New York is the place I love more than anywhere else in the world. I wanted to help New York, New Jersey and America, especially after 9/11.

"I am no longer afraid," Cipel said. "McGreevey tried to intimidate me. But I consider myself a New Yorker and an Israeli. And that is a tough combination."

Californiastemcellreport on ACT

"Given this climate of exaggerated expectations, it shouldn't be that surprising that desperate companies and delusional researchers regularly come along, and take advantage of the public's hopes and misperceptions in order to boost their stock prices or careers."

"In this case, the weak link was the media, on whom the public relies for accurate and critical reporting. Instead of reading the scientific paper closely—which would have revealed that the embryos were destroyed—most reporters took the press releases issued by ACT and Nature at face value. Given ACT's sketchy history of swindling, seasoned journalists should have known better."

The title of the Center's article was Fake it Til You Make it. The article also included text: NBC's chief science reporter, Robert Bazell, noted that "In the world of biotechnology, hype and hyperbole are the norms…. So headlines, even if the claims prove groundless, can push up the stock price long enough—or nudge deals forward—to keep the company on life support…. But even in this smelly landscape Advanced Cell Technology stands out."

The stemcellreport keeps emphasizing the "ACT in Alameda" angle [eg, As for the physical location of the center and ACT, CGS is in Oakland which is linked by an underwater tunnel and draw bridges to the island (Alameda) in San Francisco Bay that houses ACT.] although ACT originated in Massachusetts and the work discussed in Nature and in the disputed press releases all comes from Massachusetts. ACT set up shop in California to benefit from the largesse of Proposition 71.

One of the professors, Jay Gunasekera, quit as department head in June. He sued the school for defamation, claiming he was made a scapegoat for the scandal. Gunasekera, a native of Sri Lanka, settled in Ohio after receiving a military research fellowship in 1981 at Wright-Patterson Air Force Base near Dayton.

Gunasekera's lawsuit says there are other incidents of plagiarism that have not been acted upon. His lawyer, John Marshall of Columbus, refused to give any details or name any names.

"We have looked at others. We have found an awful lot of it in the ones we looked at," Marshall said.

Also:

"Specifically," he said, "students had failed to include quotations around the quoted passages in the thesis introduction and/or background despite the attribution to the cited publications in the endnotes of the thesis."

He said the offending passages mostly recount generic processes that are widely accepted in the fields of mechanical engineering and metal forming.

Meanwhile, Matrka, aged 40, who was the one who discovered the problem, submitted his thesis "Design of an Experiment to Measure Plane Strain Flow Stress at Elevated Temperatures," in 2005. He got his master's degree that June. He works for Atlas Powder Co. in Vinton County, which makes explosives for the mining industry.

***Of a different form of dishonesty, The Daily Telegraph (Australia)reported on September 12: Research has shown 43 per cent of resumes contain bare-faced lies, leaving many employers questioning whether or not their staff are really who they say they are.

Access Management Consultants senior recruitment consultant Jenny Eager says her research has shown only 59 per cent of human resource managers verify the authenticity of candidate qualifications, only 78 per cent verify employment experience and less than 50 per cent check a candidate's criminal history.

Related to Ohio University: Supporting this warning is an Australian university investigation which found more than one in 12 students copy and paste substantial portions of their assignment from the internet or other students' work. And a University of Wollongong academic fraud researcher says that for every one student caught cheating, another 10 are probably going undetected.

And interviews are affected: According to a recent SHL survey in the UK, job candidates are not only cheating in tests, they are stretching the truth in interviews.

The study found that during a job interview, 57 per cent of people think it is acceptable to stretch the truth, 33 per cent exaggerate their skills, 28 per cent omit negative information and 27 per cent fib about previous salaries.

In another public relations move, Ohio University Provost Kathy Krendl has created the Academic Honesty Committee. The purpose of the 10-member group is to prepare “institution-wide recommendations on academic honesty in respect to university policy, procedure and resources.”

If that sounds like bland, vague sentiments meant more to suppress the post-plagiarism fiasco angst than to actually change an institutional problem, that’s because it might just be.

Unless this committee is going to do more than discuss how plagiarism is a problem and reinforce what most professors already print in bold on their syllabi, it will be nothing more than words.

[IPBiz: Hmmm, this issue reminds me of the "educational aspect" of the Task Force on Ethics of the American Chemical Society.]

The patent fight between Digeo (Paul Allen CEO) and Audible attracted the attention of the New York Times on September 16. ComputerWorld wrote:

There's a great Joe Nocera column in Saturday's New York Times business section, "Tired of Trolls, a Feisty Chief Fights Back," about Audible.com, a company Digeo sued for patent infringement, asking for $400,000, and Audible's resistance to the suit. If you care at all about the festering mess that is the United States patent system you should read it (even though it requires access to the restricted Times Select area of the newspaper's Web site).

In about 2003, Digeo claimed that Audible was infringing Patent No. 5,734,823, which Digeo had bought in a bankruptcy proceeding. Digeo initiated a lawsuit in 2005. ComputerWorld wrote:

Audible, however, is fighting back, and so far it's winning because it turns out Digeo was suing under false pretenses -- it didn't own the patent it was accusing Audible of infringing. It's not giving up, though. It's going back to the bankruptcy court where it bought the patent and meanwhile keeping Audible in its sights.

The '823 patent, issued on March 31, 1998, is titled Systems and apparatus for electronic communication and storage of information and was initially assigned to Microtome. The '823 is based on a continuation of U.S. patent application Ser. No. 08/367,056 filed Dec. 30, 1994, now abandoned, which is a continuation-in-part of the U.S. patent Ser. No. 08/296,120 filed Aug. 25, 1994, now abandoned, which is a continuation-in-part of Ser. No. 07/787,536 filed Nov. 4, 1991, now abandoned.

The first claim of the '823 states:

A system for providing information to electronic storage media of system users, said system comprising:

a central computer comprising a central information storage bank;

at least one local unit communicatively coupled to said central computer, said local unit comprising a memory for storing, in electronic form, information transmitted to said unit from said central computer, and a processor for controlling transfer of information stored in said unit to the electronic storage media of system users, said local unit configured to encrypt the information when the information is to be transferred to the electronic storage media.

To date, the '823 patent has been cited by 105 U.S. patents.

Digeo is backed primarily by Vulcan, which is the investment vehicle of Paul Allen, the co-founder of Microsoft, and Allen is the CEO of Digeo.

Although Jim Blaisdell, the executive at Digeo who manages the patent, said, "It is not patent trolling when you have a real business to protect," Nocera wrote:

But it is difficult to see how trying to extract $400,000 from a company that sells digital books is "protecting" Digeo's struggling DVR business. Indeed, as Audible saw it, the '823' simply didn't apply to Digeo's technology. The inventors had in mind a system where, say, cash-strapped college students would come to a kiosk with a handheld device and download a textbook. But the patent was written very broadly part of the game in modern patent applications and it said next to nothing about the technical details.

The last paragraph in the ComputerWorld article talks about patent madness:

So how about it, Paul Allen. Nocera says 10 or more companies have paid Digeo off. Are you going to reimburse them, now that it turns out you didn't have a legal leg to stand on? Are you going to rein in Blaisdell and Digeo? Are you going to help stop the patent madness? Have you got what it takes to actually be a leader? Or are you a patent troll?

Someone earlier talked about "madness" and patents: the Harvard Law Review. See Note, Stopping the Madness at the PTO: Improving Patent Administration through Prosecution History Estoppel, 116 Harv. L. Rev. 2164, 2165 (2003)[“The PTO grants approximately 97% of patent applications…”] Only trouble is that the PTO does not grant approximately 97% of all applications.

The Food and Drug Administration [FDA] expanded its warning from bagged to all fresh spinach after it learned some retailers and restaurants regularly take large bags of spinach and display it loose.

One would think the FDA would be on top of the custom and practice in the spinach industry before a problem arises.

Also, isn't there some way to identify "which" spinach is involved [DNA analysis]? The whole industry is suffering for what may be a problem of one shipper.

The Chicago Tribune notes-- "It can be absolutely catastrophic because it just stopped consumption of spinach, which is a tragedy because in fact as far as we know it's only one shipper involved," said Roger Mills, 71, who with his brother, Basil, 76, has been selling and growing produce here since 1958. Speaking generally about the valley, Mills said that by his rough estimate, "at least $700,000 to $800,000 a day is being lost. There are several millions of dollars in inventory that is being thrown away that somebody is going to have pay for."

Of the Wisconsin connection, the Tribune reported: Christine Pearson of the Center for Disease Control [CDC] said the activation of the CDC team is part of the agency's regular response mission to help local and state officials cope with health emergencies. Wisconsin Gov. Jim Doyle, who formally requested the federal aid late Friday, said in a statement that the state and federal governments would work swiftly "to assess the causes as well as the magnitude of the outbreak." Wisconsin was the first state to discover the E. coli outbreak involving packaged spinach on Aug. 2. In all, 32 people in the state, from age 9 to 84, were stricken with E. coli-related illness, including 18 people hospitalized, according to the state health department. Of the 32 victims, 26 were female and 6 were male, the department said.

***The Christian Scientist Monitor reported on 18 Sept. on how the E. Coli might have come in contact with the spinach:

Scientists say E. coli bacteria live in the intestines of cattle and other animals and are passed to plants through contact with fecal matter. Produce could become contaminated several ways: manure used for fertilizer, fecal runoff into streams that are used for farm irrigation, or even droppings from birds that had swallowed manure. As a result, stricter FDA oversight is needed at sites where produce is grown, many observers say. Currently, FDA enforcement authority begins in the packaging facilities where produce is washed and packaged for transport.

The exposure "could come from literally dozens of sources, and it may be awhile before they identify them," says Ron Gaskill, director of congressional relations for the American Farm Bureau Federation. In any case, rules and practices expanded in recent years should allow the investigation to go faster than in previous years.

Mr. Gaskill and several others say US standards known as the Hazard Analysis Critical Control Point system will allow officials to pinpoint the source of the tainted spinach. The laws require each handler in the food chain - from picker to processor, washer, packager, and transporter - to log who they received the food from and who they gave it to.

***

from the Chicago Tribune on 18 Sept:

"One thing we know about E. coli is that it's a resident of the intestinal tract of cattle, and when the cattle manure gets into water systems, it can certainly spread and contaminate anything that the water comes into contact with," the FDA's Acheson said.

When investigators inspect a farm, they look at the water supply, farming and processing practices, topography, animal and bird activity, and the hygiene of individuals working the crop, officials said.

But so far, "we've found no smoking gun," said Jeff Farrar of the California Department of Health Services.

G&G Restaurant Corp., owner of Hamilton's Restaurant in Glenview, filed the suit in Cook County Circuit Court on Sept. 18. Unlike other actions filed in the latest outbreak, the lawsuit does not allege physical harm but seeks only compensation for money spent on spinach that had to be discarded.

"We want to ensure that this will not happen again. We're a restaurant, and we're well-known for our fresh products," said George Gregousis, who owns Hamilton's.

The suit's defendant is Natural Selection Foods, a San Juan Bautista, Calif.,-based company that sells prepackaged spinach under the Earthbound Farm brand. Federal authorities have identified Natural Selection as a possible source of the E. coli outbreak.

IPBiz wonders: hypothetically, if the FDA said "discard all fresh spinach," but in any particular case, there is no proof of E. Coli, who assumes the responsibility for loss? On an IP theme, when one is selling a commodity, and one vendor of the commodity creates a problem that impacts all, what happens to the tradename/trademark of the vendor that maintained its standards? Is there an IP cause of action here?

Friday, September 15, 2006

Dateline reported: We first invented a product: a skin moisturizer in a pill. We called it “Moisturol.” We knew it wouldn’t work as advertised because we filled the pills with Nestle’s Quik!

The infomercial about the fake product Moisturol (aka NesQuik)cost NBC Dateline about $140K. Included in the infomercial was an endorsement by a real doctor (a certified dermatologist). The doctor was paid $5,000.00. Apart from the issues with infomercials, one looks at this as of possible relevance to the use of medical experts in malpractice lawsuits. The doctor in the Dateline matter spoke about how good the Moisturol product was, even though the doctor had not tried it at the time. The doctor suggested there were tests, even though there weren't any. One wonders how frequently this might be happening in other matters, such as malpractice actions.

There is a separate point of interest in the Dateline story. Dateline, to show that each individual component of NesQuik (Moisturol) had value, ran a Google search on each component. The idea of doing a more substantive evaluation was not presented, and one was left with the impression that results of a Google search are the definitive answer. Is Wikipedia home free?

EETimes reports: Magma Design Automation Inc. has dropped assertions of infringement against Synopsys Inc. relating to one of the patents involved in the companies' Delaware patent litigation.

Synopsys (of Mountain View, Calif.) and Magma (of Santa Clara, Calif.) are also involved in a separate patent litigation dispute in California. The two cases involve different patents. The development of Sept. 15 has no impact on the California case.

Synopsys said it is also is dedicating certain of its inventions pertaining to scan chain partitioning to the public domain. By doing so, Synopsys said it is focusing its claims against Magma in the Delaware intellectual property litigation.

Mercer County Courthouse shut down on Sept. 14

The Trentonian of Sept. 15 reported: The Mercer County Criminal Courthouse Complex was shut down yesterday after officials discovered that a woman working there may have contracted Legionnaires' disease.

The Trentonian further noted that between 8,000 and 18,000 Americans are hospitalized each year from Legionnaires' disease.

Mercer County, New Jersey is home to the postal complex (at Klockner Road and Route 130) that was shut down for years because of the anthrax scare.

Dan Alexa writes: If Microsoft thinks Zune will defeat the iPod-iTunes duality they are clearly wrong. An MP3 player built at Redmond should not only be the expected iPod-killer but the device that would reshape the face of digital entertainment. And to be honest, Zune is definitely not. A copycat, maybe.

And later:

There is nothing that new and revolutionary that would make Zune’s target population wait in lines at stores like they did with Xbox 360 in November 2005. To me, Zune seems like some sort of iPod built at Redmond. But not at all an iPod killer.

Well, like the Harvard Business Review said in 2004: Plagiarize with pride.

Eating tonight at a restaurant in Pennsylvania, we noted that both spinach and mesclun salads had vanished.

FDA officials have noted that bagged spinach — the triple-washed, cello-packed kind sold by the hundreds of millions of pounds each year — is the suspected source of the E. Coli bacterial outbreak. By September 15, the outbreak had grown to include at least 20 states: California, Connecticut, Idaho, Indiana, Kentucky, Maine, Michigan, Minnesota, New Mexico, Nevada, New York, Ohio, Oregon, Pennsylvania, Tennessee, Utah, Virginia, Washington, Wisconsin and Wyoming, according to the Centers for Disease Control and Prevention.

"If you wash it [spinach], it is not going to get rid of it," said Robert Brackett, director of the FDA's Center for Food Safety and Nutrition.

A spokesperson for the National Restaurant Association said Sept. 15 that some restaurants are already pulling items containing spinach from their menus, including mesclun mix salads, consistent with our own observation at dinner on Sept 15.

***According to Philadelphia NBC10, the FBI has identified spinach from Natural Selection Foods as contaminated. This may be marketed under Rave and Dole brands.

Thursday, September 14, 2006

A Sept. 14 article in the St. Louis Post-Dispatch titled Stem cell proponents cite money mentions a report prepared for Missouri Coalition for Lifesaving Cures which states Missouri could lose billions of dollars if the initiative [Amendment 2] fails.

There is a quote attributed to Joseph Haslag, a University of Missouri-Columbia economist: "People have to make a decision based on how they value stem cell research -- we're only bringing the economics piece of it. You just want them to be well-informed. …"… We're not trying to say this is more or less important."

One recalls in the days before the vote on Proposition 71, there was an economic projection from a Stanford University professor concerning patent royalties that would come to California. These days there is greater concern with how much money California entities might have to pay to folks in Wisconsin (WARF) over the Thomson patents. People in Missouri might want to think about that, also.

The californiastemcellreport blog mentioned the possibility of action in the next month by the USPTO on the re-exam request on the Thomson patents. IPBiz predicts the PubPat/FTCR arguments won't cut the mustard. Recall, however, that the USPTO can add other references and arguments. Something along this line happened in the early part of the Eolas patent re-exam (technically director-ordered but flavored with W3C input). The USPTO flamed the W3C arguments, but made a few of its own, but ultimately the patent survived re-exam.

Further to the Ohio University plagiarism business, the Athens Times noted:

Irwin told the students that in some cases, plagiarism is simply a result of ignorance or sloppiness - putting borrowed material in quotes but neglecting to footnote it, for example. In some cases, however, he said, OU has discovered egregious examples of plagiarism, such as a thesis that contained three chapters copied, uncited, from a textbook.

Jesse Megenhardt, 22, a senior in industrial technology, said he can't comprehend how such a violation could escape notice by professors reading the thesis.

"How does something like that get by?" he demanded. "How does something like that - three chapters, 20 pages - get through?"

Irwin admitted he doesn't know, adding that "a lot of this happened years ago."

Some students expressed concerns that the widely publicized scandal will hurt enrollment, or make Russ College degrees worth less in the job market.

IPBiz suggests a flash forward to the year 2004.

Mark Lemley and Kimberly Moore in footnote 22 of an article in the Boston University Law Review [Ending Abuse of Patent Continuations, 84 B. U. L. Rev. 63 (2004)] asserted that Robert Clarke [in 85 J. Pat. & Trademark Off. Soc'y [JPTOS] 335 (2003)] was guilty of "erroneously assuming that every continuation resulted in a patent and concluding that the grant rate was 75%." Because of this assertion, Lemley and Moore themselves concluded "The 85% number provided in the revised Quillen et al. study is based on actual data about the applications that issue based on continuations, and reflects the best estimate we have of how often applications mature into patents."

Clarke made no assumption anywhere in his paper that "every continuation resulted in a patent" and, as such, the footnote is incorrect and not properly cite-checked.

A note to Jesse Megenhardt at Ohio University: the error in footnote 22, written by two professors, supposedly checked by law student cite checkers at Boston University, and published in 2004, remains uncorrected to this day.

David Berlind has been wondering what we think about this, so here goes: nice start, but there is such a long, long way for them to go after being such active opponents to open collaboration and innovation. The first step was perhaps hard, but they now need to start running fast to catch up to where the industry has been around open operating environments, open middleware, open development environments, and so forth.

Berlind wrote:

At the end of the day, we're talking about public companies that have bills to pay and stockholders to satisfy. Not only that, while IBM has issued similar non-assertion convenants, it too is operating in a hybrid mode where not all of its intellectual property is freely open for the taking by open source developers. In fact, the majority of IBM's IP is not quite so freely available. So, who is the final arbiter of what should stay open for Microsoft and what should stay closed? Microsoft must decide for itself the same way IBM decides when to non-assert certain parts of its patent portfolio and the same way Sun decides when to open source Java.

Batteries and stem cells

This is from another blog (probably via somewhere else):

In the world of batteries, Lithium-ion batteries are dominant in laptops, cell phones, and other mobile devices because of their ability to store lots of energy in a small, light package. However, if the batteries are damaged or or experience an internal short, the unstable materials in the battery release oxygen, oxidizing other materials in the battery, which in turn produces more heat. The cycle continues in a process called "thermal runaway," which in some cases can lead to a violent explosion. This is theorized to be the reason for the recent battery recalls for laptop computers.

[more on this later]

This is from californiastemcellreport, giving a quote by Prof. Green of Dartmouth:

Dr. Lanza has already touched on some of the key ethical issues. He has stressed how this research could be conducted in the context of preimplantation genetic diagnosis(PGD) without adding any additional risk of harm to the embryos involved in this procedure.

Dr. Lanza has also shown that the extracted individual cells cannot reasonably be regarded as individual or independent human beings. No cells extracted at this stage of embryonic growth could go on to full term development.

#1. The idea of "without any additional risk of harm" assumes one was going to do PGD anyway. If one is separating a cell from an 8 to 16 cell blastocyst for the purpose of creating a stem cell line, then one has the risk of harm to the remaining cells that exists in PGD. The journal Science already made the point that there is some risk of harm in separating the cell.

#2. I would guess that a cell extracted from an 8 to 16 cell embryo could go on to full term development. [The ACT plan is to divide the one extracted cell to make two cells, one for PGD and one for a stem cell line.] In PGD, one is sacrificing the one cell to do genetic information, but if someone had a different objective [?]

Wednesday, September 13, 2006

KWMU reported on the newest SIU "plagiarism" problem involving the use by Walter Wendler at SIU of ideas previously used at Texas A&M:

The two schools' plans, according to a story Friday on the Chronicle's Web site, list a two-page list of "critical concerns," including the subtitle "Overarching Issues," and a nearly identical eight-point list of "primary gaps," including "low research dollars in the sciences" and a "less attractive community than larger metropolitan areas."

Texas A&M's written belief plan notes that the university "is judged and will continue to be judged by how well it serves the citizens of the State of Texas." The Southern Illinois plan says that it "is judged and will continue to be judged by how well it serves the citizens of the State of Illinois."

Now, if we set aside the plagiarism issue, and looked at this as an anticipation (or obviousness) issue in patent law, what outcome? Is the SIU plan "invalid" over the Texas A&M plan?

Now, look at this as a Hwang Woo-Suk problem. Why didn't the SIU administrators recognize this as old hat? [Throughout the year 2005, no stem cell scientist spoke out against the work of Hwang Woo-Suk, even though it turned out to be totally fabricated. If no one calls a spade a spade, is it through fear or simple dullness?]

Posner's "Little Book" on plagiarism requires the recipient/reader to be damaged by the misrepresentation. Query: was SIU harmed by receiving a plan that had already been created elsewhere, when it apparently did not know of the prior work? Were readers of the University of Tennessee book on Andersonville harmed by reading that book without knowing that many aspects had been previously published?

About Me

I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.